The Issue Class

In 2011, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This Article does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored: what is the best tool currently available for workers to pursue systemic employment discrimination claims? Surveying the case law and Federal Rules of Civil Procedure, this Article identifies one procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims: issue class certification. Rule 23(c)(4) of the Federal Rules of Civil Procedure permits the “issue class,” which in effect allows a court to certify common issues in a case while allowing the remaining issues to be litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation that many workplace claims present. This Article explains how the issue class is particularly useful for systemic discrimination claims. The Article further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefitted from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the Article in the context of the broader academic scholarship